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Work & Family » Parental (maternity & paternity) Leave » Maternity at Work » Employer responsibilities

Employer responsibilities

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27. What obligations does my employer have?

Your employer must not dismiss you because you are pregnant, have applied for or are on maternity leave. Your employer should inform you of your entitlements to maternity leave and how to access the leave, when you inform them of your pregnancy. Your employer must grant you the leave and provide you your same job when you return. Your employer cannot refuse to grant you maternity leave (see question 30).

When you return, if your job no longer exists but there is another job that you are qualified to do, you may be entitled to that job if the salary and status are comparable to your former position. If you are a regular casual employee, this means you may be entitled to be employed in a comparable position on a regular basis. If there is no job available comparable to your former position you may be entitled to redundancy pay.

Your employer must keep all your written notices about maternity leave including letters and doctor's certificates for six years (NSW) or seven years (federal).

If your employer does not meet the obligations of the Industrial Relations Act 1996 (NSW) you can lodge a formal complaint in writing with the OIR Industrial Inspectors. Your complaint will be investigated and your employer may be prosecuted and fined. Under NSW law your employer may face fines of up to $11,000 if you are not provided with your old job back after returning from maternity leave.

If you are having difficulty resolving problems about your entitlement to maternity or other leave, or your right to return to your position after maternity leave, in addition to the OIR, the Workplace Ombudsman, the Anti-Discrimination Board, the Human Rights and Equal Opportunity Commission, or your union may be able to assist you (see the List of Contacts).

28. Can my employer require me to consult the company's doctor about my pregnancy?

No. If your employer asks you to see the workplace doctor, say that you are seeing your own doctor. The only medical reports that your employer can request are the medical certificate confirming the pregnancy and expected date of birth, a medical certificate stating your fitness to remain in your present position up until the birth (see question 6) and a report in relation to an unsafe workplace (see question 35). In order to be entitled to special maternity leave, federal Workplace Relations legislation requires women to provide a medical certificate and a statutory declaration, whereas under NSW regulations you only need to provide a medical certificate stating how much time you need off work (see question 24).

29. Can my employer hire someone to do my job while I'm on maternity leave?

Yes. Your employer may employ someone to do your job if you are on maternity leave or to do part of your job if you have reduced your hours of work before starting leave. Before the person starts work, your employer must tell your replacement that they are employed in your position temporarily. When you return from maternity leave the replacement employee's contract of employment finishes and you go back to your job.

30. I have been told I am not entitled to maternity leave because I did not apply for it. Am I still entitled to it?

Under NSW law your employer should inform you of your right to take maternity leave and how to apply to take it (see question 27). If your employer did not do this you should write to your employer immediately. You should provide all the information set out at question 13 and say you did not apply earlier because your employer did not tell you how to apply for maternity leave. If your employer is covered by the NSW industrial relations system and you have been employed continuously for 12 months, your right to take maternity leave is guaranteed. Contact your union or the OIR on 131 628 for assistance.

Federal Workplace Relations law does not require employers to inform you of your entitlement to maternity leave. For this reason it is very important you follow the steps set out at question 13 and provide the required documentation by the due date.

If you have already resigned or were dismissed you may be able to make a claim for unfair dismissal, unlawful termination, or discrimination (see the List of Contacts).

31. Can I be dismissed because I am pregnant or while I am on maternity leave?

It is unlawful for your employer to dismiss you because you are pregnant or you have applied for or are on maternity leave (see questions 27, 42 and 43).

If you are dismissed, seek advice and assistance from your union, the Unfair Dismissals Unit at the NSW Industrial Registry, the OIR, the Anti-Discrimination Board, the Human Rights and Equal Opportunity Commission or the Workplace Ombudsman (see the List of Contacts at the end of this booklet). Under the Industrial Relations Act 1996 (NSW) your employer may be fined up to $2,200 if your employment was terminated because of pregnancy or parental leave.

Your employer may also face additional legal or financial penalties in other jurisdictions, for example, through a claim for unfair dismissal, or discrimination on the basis of sex or caring responsibilities. If you are able to prove an unfair dismissal claim, you may be able to get your job back, depending on the circumstances.

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Date Created: 5 May 2004
Last Reviewed : 16 September 2008

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